Posted on 12/31/2003 7:58:19 AM PST by knighthawk
Saddam Hussein - the man who butchered his daughters' spouses, sprayed deadly chemical poisons that peel human skin, and chopped off the tongues of potential critics - was anything but a cog in the machine. He was the machine. A machine that chewed up and spat out its cogs. But, as it does with most of those who end up in chains and certainly with those who spend months cohabiting with mice, imprisonment has a way of making even the once petrifying and mighty seem small.
Hussein's frail, dazed visage was a mesmerising, potent analgesic for US and Iraqi nerves frayed by months of daily insurgent attacks. But the drama of the dictator's capture faded quickly, supplanted by the singularly perplexing question: "Now what?" What should the US and Iraqi authorities do with a man who -- with his massacres, his torture chambers, his cross-border invasions and his plundering - has exploded the limits of the law? Most Iraqis and one US President are focused on retribution (read: execution). But the punishment of Hussein will ultimately be less important than the judicial process that precedes it. The most important considerations should be those that all too rarely guide war-crimes trials: How can the tribunal best empower, enlighten and comfort those who will shape the future of the country?
For the trial to address these considerations it must be held on Iraqi soil. The UN tribunals for the former Yugoslavia and Rwanda have a lot to teach about the downsides of remote justice. To their credit, the UN courts have convicted and incapacitated some of the 20th century's most ghastly thugs. But what they have offered in international legitimacy and procedural propriety, they have lacked in local relevance. Victims and survivors find them painfully slow.
Despite spending more than $US500 million ($670 million), the Rwanda court has tried just 19 men since its founding in 1994. The Yugoslav court, which has cost about $700 million, has by contrast been a paragon of efficiency, having tried more than 40 accused since it was established a decade ago. But even the Milosevic trial, which was once touted as the trial of the century, will soon drag into its third year.
Because the courts are in the Hague and Arusha, Tanzania - many miles from the scenes of the crimes they're judging - and because the sessions are often tedious and rarely broadcast back home, survivors, bystanders and fellow perpetrators pay almost no attention.
Fortunately for the Iraqi people, three days before Hussein's arrest, the Iraqi Governing Council announced the establishment of a national tribunal. The council even chose a site: Hussein's Baghdad Gift Museum, which once housed the opulent presents given to him by the many heads of state who came wooing.
Whatever the faults or growing pains of the UN courts, the Iraqi statute should, in fact, be revised to invite foreign participation. In an ideal world, for the sake of fully-fledged local empowerment, the court would be comprised strictly of Iraqi judges and lawyers.
But, alas, Iraqis don't reside in an ideal world and foreign involvement will be essential. The simple reason is that finding a batch of independent, respected, home-grown lawyers to staff the bench and the prosecutor's office will be extremely difficult. Most prosecutors and judges in Iraq are tainted -- tainted because they served in the Baathist regime, because they were brutalised by it or because they fled and are Iraqi exiles, seen by some to be American stooges.
THERE is at least one encouraging precedent for mixing foreign and domestic jurists. The trial chamber of the hybrid court in Sierra Leone contains one Sierra Leonean appointee and two UN appointees -- one African (from Cameroon) and one Canadian. The appeals chamber contains three UN and two Sierra Leonean positions. In Iraq, for the sake of local legitimacy, the balance should be reversed in favour of Iraqi nationals, with three judges hailing from Iraq and two from outside.
There is, of course, a great temptation to rush Hussein to justice. Two days after his arrest, a member of the Iraqi Governing Council said he expected the trial to take place "in the next few weeks" and to lead to swift conviction and execution.
Still, those eager to tie the hangman's noose should note the extent to which even the well-funded UN tribunals, filled with practised specialists in international criminal law, bungled their early cases, litigating extraneous, time-consuming facts and issuing shoddy indictments that later had to be scrapped.
The Iraqi court will make its own mistakes. And, despite the risks of delaying the country's trial to end all trials, the proceedings will be too closely watched and cherished to risk the rush. In fact, Hussein should not be the first Iraqi in the dock -- it would be better to botch the prosecution of the six of hearts than the ace of spades.
By slowing down, the authorities will also have a chance of shoring up local security and developing a witness protection program. Iraqi society is so divided that, while the trial of Hussein may eventually create a shared and cathartic record of his mayhem, it will also illuminate the society's religious, ethnic and political divisions, triggering violent demonstrations and encouraging resistance.
So far, no limit has been set on the number of Iraqis who will be judged along with Hussein. At present, coalition officials are holding 5500 detainees across Iraq. An effort to try them all would be immensely destabilising and would dilute the quality of the justice dispensed.
A clear cap should be set on the number of suspects to be prosecuted (even Nuremberg tried only 22 leading Nazis). Otherwise, the court may contribute to, rather than diminish, the local fondness for vengeance. For those who do not make the hit list, a truth commission that invites testimony in exchange for amnesty should supplement the tribunal, allowing Iraqis to come forward to testify to the terror and indignity they endured, to receive public recognition for their suffering, to create a public record of everyday horrors and to aid in society-wide de-Baathification.
The only predictable outcome of the Iraq trial is that nobody - in Iraq, in the US, in the Middle East and in the international public gallery at large -- will find it suited to the gravity and barbarity of Hussein's assault on humanity.
If Iraqis can emerge from the coming trials with the dignity, wisdom and commitment to the rule of law that Hussein denied them, that will be their greatest revenge.
The New Republic
Samantha Power is a lecturer at Harvard's John F. Kennedy School of Government and the author of A Problem from Hell: America and the Age of Genocide (Basic Books/A New Republic Book).
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